The organisations take issue with the size of the damages awarded to Wilson and how much it exceeds the damages cap, media lawyer Justin Quill wrote in the Herald Sun on behalf of the alliance. They also contend the case has implications for free speech in Australia.

Wilson in the recent Amazon Super Bowl ad

Quill is seeking leave in the Victorian Court of Appeal to intervene in the case.

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Writing for the Herald Sun, Quill said the media organisations believe the decision of the Supreme Court in awarding Wilson a record-breaking $4.5m for a series of articles which painted her as a liar, was wrong.

Since the introduction of the Defamation Act in Victoria in 2005, defamation laws have been consistent across the country, he said, and there has been a cap on damages – initially $250,000 but now $389,500.

“So that’s the most a court is supposed to give for what’s called general damages. Or hurt feelings. That has never stopped people getting compensated for specific and provable losses such as wages or lost profit from a contract. That type of compensation is called ‘special damages’,” Quill explained.

“And that is from where Wilson received most of her money. She was awarded more than $3.9m in special damages for what she claimed were her lost earnings. It seems like a lot to most of us – but Wilson is a movie actor getting some good roles. On top of her special damages, she also received $650,000 in general damages.

“Hang on a minute, I hear you saying. Isn’t the most you can get $389,500? Well, in my opinion, yes. But Justice Dixon found the cap doesn’t apply because his Honour had awarded Wilson aggravated damages in the circumstances of publication – because Bauer was found to have aggravated the hurt feelings she had suffered.”

Quill said this particular intricacy of the case was concerning because of how frequently it could apply to other media organisations. In a survey of 115 defamation cases brought against some of the media organisations now involved in the case, he said up to 90% of them included claims for aggravated damages.

Arguing it is therefore much more than just a theoretical risk, Quill said there should be a debate about whether Justice Dixon was right in his interpretation of the Defamation Act as it related to the cap on damages.

Bauer Media’s general counsel Adrian Goss welcomed support from the media company’s rivals: “Bauer isn’t surprised to see Australia’s largest media organisations supporting its position in relation to the cap on defamation damages. That aspect of the court’s decision has significant consequences for all media.”

Quill said Wilson’s recent promotion of The Hustle – a remake of Dirty Rotten Scoundrels she stars in alongside Anne Hathaway – is evidence Wilson’s career has recovered.

In addition, Quill said freedom of speech was important for the media’s ability to “uncover dodgy politicians or expose unscrupulous business practices”, and noted “as a famous actor, you would imagine Rebel Wilson believes in [it]”.

Quill also cited former state Attorney General Rob Hulls who told parliament when the Defamation Act was introduced that it was important uncapped defamation payouts were not higher than personal injury awards, so as to avoid an “unjustifiable inconsistency”.

“The question really is this: why would a person who has suffered a lifetime debilitating injury be subjected to a cap for non-economic loss while someone who has suffered a hurt to his or her reputation is allowed to claim unlimited damages?”, Hulls said.

Vivienne Kelly is the editor of Mumbrella. Throughout her career she has worked as a journalist and editor across a number of consumer and B2B finance and real estate titles. She has also spent time in public relations across the health, finance and energy sectors.

Law professor Ray Watterson, of the University of Newcastle (Australia), noted in Media Law in Australia (Oxford, second edition, 1988) that Lord Atkin ‘conceded in Sim v Stretch (1936) that judges and textbook writers alike have found difficulty in defining with precision the word “defamatory”.’ Professor Watterson explained how libel law works:
The mere publication of words defamatory of the plaintiff gives rise to a prima facie cause of action … a plaintiff has the benefit of the presumptions of falsity and of damage. He is not required to prove that the words are false; the law presumes in his favour that they are. The law also presumes that defamatory words cause harm. Thus it is not necessary for the plaintiff to … to prove that he suffered material or financial loss … Furthermore, a plaintiff is not required to establish that the defendant intended to harm his reputation …
Libel law thus oppresses defendants (and the community) because it is unfairly biased in favour of plaintiffs by a string of false presumptions: appearance (reputation) is always to be preferred to reality (character); the private right to reputation is always to be preferred to the public right to information; a slur is always false; the author of a slur is always guilty; the subject of a slur is always innocent; a slur is always intentional and always causes damage.

Still confused about the whole case, and our libel laws.
Bauer’s story was malicious, as so many of their stories are.
But Wilson WAS found to have told porkies – about her age and other things. Yet still, her hurt feelings and hurt acting career appear to have prevailed.

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